United States District Court, S.D. Indiana, Terre Haute Division
NIKKI J. VESTAL, Plaintiff,
HEART OF CARDON, LLC, Defendant.
Jane Magnus-Stinson, Chief Judge
Nikki Vestal worked as a Certified Nursing Assistant for a
short time at Lyons Health and Living Center, operated by
Defendant Heart of CarDon, LLC (which the Court will refer to
as “Lyons”), while coping with the
effects of diabetes. On four occasions, she suffered
complications from her diabetes which caused her to leave
work early. On a fifth occasion, she suffered an episode
which three Lyons employees believed to be the result of
methamphetamine use-not her diabetes. The employees requested
that Ms. Vestal provide a urine sample for a drug test. The
test, according to Lyons, was positive for methamphetamine,
and so later that day Lyons terminated Ms. Vestal's
employment. Lyons, however, failed to follow its written
protocols for administering a drug test, and no record of the
positive result exists. Moreover, the episode closely
followed a written warning threatening termination if Ms.
Vestal did not improve her attendance. Ms. Vestal adamantly
maintains that she has never used methamphetamine and was not
under the influence of methamphetamine at the time of the
together, Ms. Vestal asserts that Lyons' explanation for
her termination-that she was working while under the
influence of methamphetamine-is a pretext and that Lyons
actually terminated her because she was diabetic or because
it did not want to accommodate her diabetes. In addition to
this claim, brought under the Americans with Disabilities Act
(“ADA”), Ms. Vestal alleges claims under
the Rehabilitation Act and state law. Before the Court is
Lyons' Motion for Summary Judgment, [Filing No.
53], in which Lyons argues that it is entitled to
judgment in its favor on all of Ms. Vestal's claims.
Resolving all factual disputes in the nonmovant's favor,
Ms. Vestal has demonstrated that a genuine issue of material
fact exists as to whether she was terminated in violation of
the ADA. The remainder of her claims, however, fail for lack
of evidence or due to legal shortcomings. The Court therefore
GRANTS IN PART and DENIES IN
PART Lyon's Motion, permitting Ms. Vestal's
ADA claim to proceed to a negotiated resolution or trial.
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, that the movant is
entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). As the current version of
Rule 56 makes clear, whether a party asserts that a fact is
undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record,
including depositions, documents, or affidavits. Fed. R.
Civ. P. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence
or presence of a genuine dispute or that the adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated. Fed.
R. Civ. P. 56(c)(4). Failure to properly support a fact
in opposition to a movant's factual assertion can result
in the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed. R.
Civ. P. 56(e).
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not suffice to defeat summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable factfinder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009).
The Court views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed. R. Civ. P. 56(c)(3), and the Seventh
Circuit Court of Appeals has “repeatedly assured the
district courts that they are not required to scour every
inch of the record for evidence that is potentially relevant
to the summary judgment motion before them, ”
Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against
the moving party. Ponsetti v. GE Pension Plan, 614
F.3d 684, 691 (7th Cir. 2010).
for Summary Judgment
following factual background is set forth pursuant to the
standards detailed above. The facts stated are not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Ms. Vestal's Employment
Vestal began working for Lyons as a Certified Nursing
Assistant on January 13, 2016. [Filing No. 55-1 at
4; Filing No. 55-7 at 1.] On her Employee
Health Statement, submitted to Lyons as a condition of her
employment, Ms. Vestal indicated that she has diabetes.
[Filing No. 55-12 at 2.] At that time, Ms. Vestal
had gestational diabetes. [Filing No. 55-1 at 23.]
In late January or early February 2016, Ms. Vestal was
diagnosed with Type II diabetes. [Filing No. 55-1 at
23.] Ms. Vestal immediately informed Angie Jackson,
Director of Nursing at Lyons, of her diagnosis. [Filing
No. 55-1 at 23.] Ms. Vestal also told Ms. Jackson and
many of her coworkers where she kept her medication and
emergency contact information in case she had a
diabetes-related episode while at work. [Filing No. 55-1
at 23-24.] Ms. Vestal did not, however, report any need
for accommodations to the Corporate Benefits Manager, as
outlined in Lyons' ADA policy. [Filing No. 55-1 at
7; Filing No. 55-1 at 10; Filing No.
January 13, 2016, when she began working for Lyons, and her
termination on May 2, 2016, Ms. Vestal suffered four
diabetes-related episodes at work during which her blood
sugar dropped severely. [Filing No. 55-18 at 6.]
During each episode, Ms. Vestal became dizzy and/or passed
out. [Filing No. 55-1 at 24; Filing No. 55-18 at
6.] On three occasions, Ms. Vestal's coworkers
called her husband, who then took Ms. Vestal home from work;
on a fourth, Ms. Vestal's coworker took her home.
[Filing No. 55-18 at 6.]
April 13, 2016, Ms. Jackson gave Ms. Vestal an
“Employee Communication Form” with a box marked
“Absenteeism” checked. [Filing No. 56-2 at
1.] In the section marked “Employer Statement
Regarding Incident/Occurrence, ” Ms. Jackson wrote:
Nikki has had three times of calling in within her 1st 90
days of employment and leaving early on one occasion. Nikki
cannot miss any more work within 1st 90 days or will be
self-termination. Nikki needs to remember that Lyons
residents, family, and employees count on her for being at
work when scheduled.
[Filing No. 56-2 at 1; see Filing No.
56-1 at 14 (deciphering handwritten document).] Ms.
Jackson spoke with Ms. Vestal about the report but could not
remember whether Ms. Vestal mentioned her diabetes during the
meeting. [Filing No. 56-1 at 16.]
Episode Leading to Termination
2, 2016, Ms. Vestal suffered another episode at work after
changing her diabetes medication from Faxiga to Invokana.
[Filing No. 56-7 at 16.] Ms. Vestal informed her
coworkers that she had changed her medication. [Filing
No. 56-7 at 16-17.] She was feeding residents and eating
her breakfast when, a few hours into her shift, she began
seeing spots, feeling dizzy, sweating, and feeling sick to
her stomach. [Filing No. 56-7 at 19.] Ms. Vestal
went to check her blood sugar and noted that it had dropped
and was not rebounding. [Filing No. 56-7 at 23.] Ms.
Vestal asked for help and was given a wheelchair and orange
juice. [Filing No. 56-7 at 19.]
Lyons employees, Ms. Jackson and Assistant Director of
Nursing Cathy Crane, witnessed Ms. Vestal's episode and
testified that they believed Ms. Vestal's episode to be
symptomatic of drug use. [Filing No. 56-1 at 18-26;
Filing No. 55-6 at 2-3.] In addition to the
sweatiness and dizziness, they claim that Ms. Vestal picked
at sores on her face and legs, had slurred speech, and could
not drink from her orange juice, among other things.
[Filing No. 56-1 at 18-26; Filing No.
55-6 at 2-3.] Ms. Vestal, for her part, denies several
of these symptoms and explains that the “sores”
were the result of an impetigo infection which she did not
pick. [Filing No. 56-7 at 29-36.] It is Ms.
Vestal's testimony which the Court must credit in
considering Lyons' summary judgment motion.
observing Ms. Vestal, Ms. Jackson requested that Ms. Vestal
take a urine drug test. [Filing No. 56-4.] Here, the
parties' stories differ significantly. Lyons, properly
hewing to the stringent summary judgment standard, sets forth
the events as described by Ms. Vestal in her discovery
responses and at her deposition: Ms. Vestal was asked to take
a urine test and attempted-but was unable-to do so.
[Filing No. 59-1 at 5.] Under this version of the
facts-Ms. Vestal's-the positive drug screens to which Ms.
Jackson, Ms. Crane, and Health Administrator Lisa Bloesing
attested, [Filing No. 56-4 at 1; Filing No. 56-5
at 1; Filing No. 56-6 at 5-6], were completely
fabricated because Ms. Vestal never provided a urine sample.
summary judgment briefing however, Ms. Vestal now seeks to
embrace parts of Lyons' version of the facts, which is
that she was able to provide a sample, but the positive
result was fabricated because she had not used
methamphetamine. Further, she complains that the testing
failed to comply with any of Lyons' policies for drug
testing, which provides in part:
if the Company suspects that an associate's job
performance or on-the-job behavior may have been affected in
any way by alcohol or drugs, or that an associate has
otherwise violated the Substance Abuse Policy, the Company
will require an oral screening test, blood test, urinalysis,,
or other drug/alcohol screening. Testing may include, but not
be limited to, tests for cocaine, methamphetamine, THC, and
1., The associate must complete the necessary drug
information and consent form prior to testing. Failure or
refusal to complete the necessary paperwork is grounds for
2. If confirmed test results are unsatisfactory
(positive), then the associate may request a follow-up
3. Records pertaining to an associate's test results,
rehabilitation requests, or treatment will be handled
confidentially, maintained in files separate from the
associates personnel file, and disclosed only to those having
a legitimate need to know the information.
[Filing No. 56-9 at 1.] Ms. Vestal was not asked to
complete any “drug information” or consent form
and was not provided an opportunity for a “follow-up
confirmation test.” [Filing No. 56-1 at
the testing comply with the drug test's instructions,
which provided in part:
1. The RoalltyChuck Integrated
Specimen Cup provides only a qualitative, preliminary
analytical result A secondary analytical method must be used
to obtain a confirmed result Gas chromatography/mass
spectrometry (GQMS) is the preferred confirmatory
2. There Is a possibility that technical or
procedural errors, as well as Interfering substances in the
urine specimen may cause erroneous results.
3. Adulterants, such as bleach and/or alum, in urine
specimens may produce erroneous results regardless of the
analytical method used. H adulteration Is suspected, the test
should be repeated with Another urine specimen.
4. A positive result does not Indicate level or
intoxication, administration route or concentration ...